Category: Legal matters

Scotsmen will need a sporran licence. No, seriously.

As from 21 August this year, European Protected Species are getting extra protection in England. It would be nice to say this is because of enthusiasm on the part of the government to further conserve these species, but actually it’s in response to a judgement in the European Court of Justice requiring UK legislation to more closely follow the EU Habitats Directive. Still, let’s not look a gift horse in the mouth. Here’s Naturenet’s updated page on European Protected Species, including a list of all the species concerned.

Sporran (c) moofie

A parallel new legislative package has already been introduced in Scotland, and one unexpected consequence, that the BBC wittily points out, springs from the new requirement that anyone who wishes to possess specimens of a protected species must have a genuine reason for doing so, and will have to demonstrate this is compatible with the Regulations. Such ‘specimens’ could include sporrans made from otter or badger skin – although badgers are not European Protected Species the Scots have given them extra protection as well. So Scotsmen face the prospect of needing a sporran licence! EDIT: The Scottish Sporrans website says this is not entirely true. They say:

A quote which is being given out by the Scottish Executive in regards this matter is as follows: “New legislation, introduced on the 15th February 2007, has made it a legal requirement to have a licence to possess live or dead specimens / derivatives of any wild animal listed on AnnexIV(a) of the Habitats Directive, such as Eurasian Otter, Wildcat or Bat, NOT as was erroneously reported in the newspapers to Eurasian Badger, Common Seal, Grey Seal, Deer, Hedgehogs and Moles. The law in relation to these species has not changed at all.”

Barker planning review: wildlife safe in our hands..?

Readers will not need The Ranger to draw their attention to the radical proposals made via HM Treasury in the Barker review of the planning system. The Guardian explains:

Under proposals put forward by the economist Kate Barker, planning permission will be easier to obtain for new airports, supermarkets and other large developments. Ms Barker, a member of the Bank of England monetary policy committee, was commissioned by the Treasury to look at ways of reforming the planning system to help tackle housing shortages and promote economic growth.

Previously, this sort of research – if not this sort of result – might have been expected from the erstwhile Department of the Environment, Transport and The Regions (DETR). It is not news that for many years the Treasury has been itching to get around those pesky environmentalists, who have been sheltering behind John Prescott’s considerable bulk.

Barker Review of Land Use Planning

Now that Mr Prescott is driving off towards the sunset, Mr Brown is stepping forward. DETR is no more and it’s no great surprise that this report arrives as soon as it does, and that it recommends resolving the perceived conflict between developers and environmentalists in such a pointed way. If development is being thwarted by environmental constraints, Barker seems to argue that the way to resolve the conflict is simply to ease those constraints. Maybe it really is that simple. The Ranger, fresh from several years working in a planning authority and with experience of numerous planning applications constrained by environmental concerns, does not think so. Good development can be achieved, often to the benefit of biodiversity and landscape. Environmental constraints are one way to help this happen, not to hinder it. But just as there are some developments that are of over-riding importance, there are also some habitats and species of over-riding importance, and they need to be conserved. In this context we need to accept that for some proposed developments, no means no – it does not mean that we should rewrite the rules until we get the answer we want. On another point, if the desired end result is good and sustainable decision-making, there is a need for local concerns to be given more consideration, preferably in advance of application, rather than the contrary. Taking power over their local environment away from people is rarely a popular or successful move in the long term, because they will not endorse the decisions taken. Interestingly, there was an Ipsos MORI poll commissioned for the review. It stated that 71 per cent of respondents said land with important or endangered wildlife should be safeguarded. Land with scenic value came second with 54 per cent, and green spaces in towns and cities third with 47 per cent. The RSPB interpreted this, rather optimistically as “Barker planning review backs safeguards for wildlife sites“. Simon Marsh, Head of Planning and Regional Policy at the RSPB said:

People believe that wildlife is important both in the countryside and in towns and cities. Kate Barker has accepted that environmentally important land should be properly protected and that designated land, such as Sites of Special Scientific Interest and Special Protection Areas, do this extremely well.

The Ranger is concerned about this interpretation, too, for a simple reason. Environmentally important land is not the same thing as designated land. Designated areas are not enough. Wildlife and landscape exists everywhere, and it must be conserved and enhanced everywhere – yes, even in the most intensive developments. Consigning it to protected areas is ultimately to divorce us from it, and to lose it. Working on the Isle of Wight brings some unusual insights into land management and designations. In particular, the Area of Outstanding Natural Beauty. The designation is scattered, almost at random, across the Island. It is universally acknowledged that a few areas within the AONB are not worthy of the designation, and that many outside it are worthy. So in some ways the boundary of the designation acts as a hindrance rather than help, insofar as those area outside of the AONB are concerned. But in over 40 years since it was designated nobody has dared realign the boundary, nor are they ever likely to do so because of the huge complexity and controversy involved in doing so. And a lot has changed in 40 years.

St Helen's, Isle of Wight

Not in the Area of Outstanding Natural Beauty

Designations of all sorts, as Barker well understands, by themselves are simply not flexible enough to respond to the wider needs of today’s society, either to allow development or to conserve and enhance biodiversity. The RSPB and Kate Barker are right to point out that the existing protected landscape and habitat system works well – it does, up to a point. But the designated areas can be only a part of the answer, never the whole thing. If everything outside of that system is to be sacrificial we shall lose far more than we have ever managed to conserve.

Minimoto bikes and go-peds – what’s the solution?

I have updated the Naturenet page on illegal use of cars and vehicles in the countryside. Some of the legal references were a bit elderly so they’ve been updated. It also now includes a link to a really good report produced by Red Rose Forest last November, which gives some very helpful tips as well as a comprehensive overview of the present illegal motorcycling problem in Manchester. If you’ve got problems with bikes on your land then this is essential reading.

Village Greens: the Oxfordshire ‘Trap Grounds’ case is decided at last

This one’s complicated but do try to keep up. Land can be registered as a town or village green if it has been used by local people for’lawful sports and pastimes’ (ie informal recreation) for 20 years freely and openly. What this means has until now been less clear but it certainly makes it harder for a developer to build on a bit of land if this status can be proven. Sadly, the law behind this is a right tangle, and the Ranger has had many dealings with it which don’t really give him much confidence in it. Recently, the House of Lords ruled on a bit of this law and clarified one crucial part of this whole mess. Lots of people have been waiting for this ruling for months or even years; the original application dates back to 2002. The ruling concerned a bit of land in Oxfordshire called the ‘trap grounds’. However it is relevant to land throughout England.

Local people on the Trap GroundsLocal people on the Trap Grounds

In short, the previous (Appeal Court) ruling held that if somebody applied to register a village green, all a disgruntled landowner had to do to defeat the application was to fence off the land and keep people out in the period after the application had been made but before it was decided. So almost any such claim could be defeated very easily, regardless of whether or not local people had been using the land for lawful sports and pastimes in the past. The recent ruling changes this and says that the use of the land has to be up until the application, not necessarily up until the decision. So nothing the landowner does to exclude people after he finds out that an application has been made will necessarily affect the application. A number of other interesting matters are addressed in the judgement. The issue of what you can and cannot do on a new village green is considered at last, and it is suggested that

…land registered as a town or village green can be used generally for sports and pastimes.

The judgement also clarified the application of a Victorian statute (Section 29 of the Commons Act 1876) which says:

An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance…

This statute is now clearly applicable to newly created village greens – a point of great significance for potential developers. So, this means that it might be easier to claim Village Greens, and then keep them. However, the Ranger finds the system still unjust. There is still no real duty or even expectation that anyone would manage or maintain such places. It is still possible for an applicant to use the process to frustrate or at least seriously delay legitimate development proposals – similarly, it seems to encourage landowners to prevent such customary use of their land at all costs, rather than consider ways of accommodating it, even if new development occurs. Uniquely amongst the legislation he is required to administer, the Ranger believes that the entire Village Green statutory process is a red herring that confuses and misleads both those objecting to planning applications and those seeking to gain consent to develop land. It is so complex and flawed that the whole thing should be swept away and new purpose-made primary legislation should take its place.

Do you have a fundamental right to fall in a pond?

Remember this old chestnut? What a lot of trouble it causes, and what a lot of ineffective but expensive fencing and signage is provided by local authorities to little effect other than to appease insurers or fearful senior officers.

The issue here is that putting up signs and fences or even life-preservation equipment may not be actually to save lives but to satisfy those who want to ‘see something done’. And they are expensive to install and maintain. So do we always have to put fences and signs around open water in a public place. No, we do not. And here is why.

The Ranger recently read this story:

The parents of a Flintshire toddler who drowned at a holiday park hope his death will prompt the government to introduce tighter controls on ponds.

A fenced-off pond in a country park

This is, of course, a tragic tale. However, the Ranger supports the coroner’s conclusion in this sad case:

It is healthy and natural for youngsters to show an interest in water, and [I do not] back calls from safety campaigners to fill in ponds. I can’t say that I recommend that all ponds should be filled up, because they provide so much pleasure to people and to children. I can only say that ponds can be dangerous places and people should be aware of that.

The Ranger is aware of a most illuminating judgement of the House of Lords in 2003 on this topic, which those of us who look after public water bodies might find interesting. This case is not the same as the Flintshire one because it concerns an adult, not a child. But both have the similar conclusions. This case concerns Mr Tomlinson, who sued Congleton Borough Council when he jumped into a lake in their country park and broke his neck. Mr Tomlinson lost his case. The resulting judgement strongly supports the view that some hazards are, in themselves obvious and that a landowner is not always obliged to protect everyone from everything. This is a principle which it is sometimes necessary to remind people of when they begin campaigns for more signs, fences, barriers, insurance, and so on.

The judgement contains many interesting and even a few entertaining parts, such as a comparison with the island of the Sirens, which concludes that “…the beach, give or take a fringe of human bones, was an ordinary Mediterranean beach. If Odysseus had gone ashore and accidentally drowned himself having a swim, Penelope would have had no action against the Sirens for luring him there with their songs.”. The judgement is highly relevant to all land managers, in fact mentioning rangers specifically at several points. It also refers to a host of other cases, some unlikely, such as the case of Miss Bessie Stone, who “was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for 6 out of the Cheetham Cricket Club ground”, and some which include situations which we are often presented with. Here are two short extracts:

“It will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair.”

“…it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled… In truth, the arguments for the claimant … attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country.”

(My emphasis) The Ranger wonders, does this judgement contain a fundamental principle which should be put on the list for our own Constitution – if it is ever drawn up? It would be wonderful if so.

To read the whole judgement, see here or search on the full citation below:
Judgments – Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)

Trespass with a Vehicle (Offences) Bill

The Ranger recently revisited Westwood Woodland Park, where his glamourous career began. It was the scene of many struggles with illegal motorcycles and once, even a Reliant Robin.

The presence of powered vehicles in open countryside is forever a source of conflict. It is quite possible to use a motor vehicle responsibily in such areas but the trouble is it only takes one person not doing so to do a great deal of damage. For example on the Isle of Wight, use of the Tennyson Trail by irresponsible off-roaders has led to no end of trouble:

From the Isle of Wight County Press, Friday, December 30, 2005
From the Isle of Wight County Press, Friday, December 30, 2005

Under the 10-minute rule a bill has been introduced to the House of Commons called the Trespass with a Vehicle (Offences) Bill. The bill has no chance of becoming law, and it seems to be mainly aimed at gypsy and traveller encampments. However it also gained support from Island MP Andrew Turner because of its possible relevence to the recreational offroading problem.

There is no doubt that this bill highlights some very important issues for us as countryside managers. At present, the law on vehicle use seems ill-fitted to meet the needs of the majority of those who live, work and play in the countryside, even including those who like to use vehicles to play offroad. Incidents like that highlighted in the cutting above will lead to areas of the countryside being put off-limits, and will reduce access for many people. Any land manager who has an offroad highway on their land will know that this sort of thing is an extreme example of a constant low-level problem.

Today’s law is based on principles of access and use established in a pre-motor car society. Whilst the body of law surrounding motor vehicles is very large, and highly complex, it somehow does not seem adequate to allow those who manage the land from taking sensible and legal measures to prevent the irreversible damage that can be caused by a few daft sods on trials bikes.

Fruit, flowers, foliage and fungi – fair game, or off limits?

It’s a little known but reassuringly archaic fact that under English common law you can normally pick the “Four F’s” if growing wild – fruit, fungi, flowers and foliage, for non-commercial use, anywhere where you can legally go.

A basket of field mushrooms (credit: Colin Pope)

It’s a nice law, and the Ranger thinks it a proper law – after all, the picking of such things is pleasant, and encourages people to enjoy their environment and remember where things come from. But can you imagine the chances of introducing such a right now, if it didn’t already exist? The braying of defiance from landowners would be almost equalled by the massed reedy whines of the environmentalists – until both were brushed aside by the behemoth of public health and safety. Surely we could not permit people – perhaps even children – to just go up to things in the countryside and pick them? Maybe even to eat them! What if the fruit were dirty? Diseased? Infected? Poisonous? A filthy, unclean, unwholesome thing from the earth? Who could be sued if a child were hurt? Who would take the blame? Better perhaps that we take our fun in digital form, and our nutrition from clean, packaged fare safely obtained from a reputable retailer.

Stand up for the rights of rats

The National Trust for Scotland has been poisoning rats on the Scottish island of Canna in the name of bird conservation. Ten thousand of the furry little darlings have already been eliminated, and another thousand or so remain for the treatment.

A rat

This is interesting to the Ranger, another Island dweller, for a number of reasons. Non-indigenous species on an island can be problematic – as we on the Isle of Wight know with respect to grey squirrels. Dealing with them can be even more problematic. Let’s take a short voyage into the recent past of island wildlife culls. The Ranger was amazed and concerned by the public response to the Outer Hebrides hedgehog cull in 2002, 2003 and since. Whilst this was partly fuelled by a mismanaged SNH publicity exercise, the views expressed went far beyond any of that. This response included describing Scottish Natural Heritage as “unfeeling, uncaring scum” or “SNH Nazi CONservationists“; and their policy as “scientifically flawed and unethical” or even “pseudo science at its worst”. The issue became national news and celebrities including Sting, Sir Paul McCartney, Twiggy, Joanna Lumley, Sir Tim Rice and Watership Down author Richard Adams all offered the hedgehogs homes in 2003 – although the Ranger doesn’t know whether such kind offers were ever taken up. Overall, an extraordinary response to the plight of the few hundred hedgehogs involved in this case – and one which showed the public’s overwhelming concern for the welfare of these popular creatures. Flash forward – to the rats. The story has been public since at least August 2005 but no clamour can be heard. The Ranger is concerned that perhaps the animal lovers who stepped forward to help the hedgehogs have not heard of the pitiful plight of the poisoned rats. Step forward, Sir Paul! How many Scottish brown rats can your bountiful estate support? Surely a few more ratties in distress could squeeze in? Joanna Lumley? Yes, you there! Will you be available to pose for photos with the rat crates before unloading? And where is the Rat Rehoming Society, appealing for donations to save the little brown sweethearts? Could it be that the huge debate about the moral and legal rights of hedgehogs in the last few summers was not fuelled by a dispassionate concern for justice for all animals – but by a simple love of hedgehogs? It seems impossible to conclude otherwise. The Ranger has no problem with that – it’s very good that people love wild animals so, and care for them with such dedication. Most cull objectors would claim no more than this – but some do. They make a mistake when they allow that affection and care to go one step further. Other people should not dictate which animals they care for, nor should others criticise them for making such efforts on behalf of their chosen beloved species, whatever it might be. But in return, animal enthusiasts should allow others the same freedom – if others want to manage animals in certain ways, constructive criticism of the methodology can be appropriate, but emotional appeals and personal attacks – or comparisons with Nazi Germany – are not.